DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2019/861)

SPANOS (WA) PTY LTD AND CFMEU (WA) ENTERPRISE AGREEMENT 2016-2020

Building, metal and civil construction industries
COMMISSIONER WILSON	MELBOURNE, 14 MAY 2019

Application for approval of the Spanos (WA) Pty Ltd and CFMEU (WA) Enterprise Agreement 2016-2020.

[1] An application has been made for approval of a greenfields agreement known as the Spanos (WA) Pty Ltd and CFMEU (WA) Enterprise Agreement 2016-2020 (the Agreement). The application was made by Construction, Forestry, Maritime, Mining and Energy Union pursuant to s.185 of the Fair Work Act 2009 (Act).

[2] This is a greenfields agreement that meets the requirements of section 172(2)(b) of the Act. I am satisfied that each of the requirements of ss.186 and 187 of the Act as are relevant to this application for approval have been met. In accordance with s.187(5)(a) of the Act, I am satisfied that Construction, Forestry, Maritime, Mining and Energy Union is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

[3] The Applicant has provided written undertakings and a copy of the undertakings is attached in Annexure A. In accordance with s.191(2) of the Act, the undertakings are taken to be a term of the Agreement.

[4] Pursuant to s.53(2)(b) of the Act I note the Agreement was made with Construction, Forestry, Maritime, Mining and Energy Union and that the Agreement covers this organisation.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 21 May 2019. The nominal expiry date of the Agreement is 31 December 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) filed an application for the approval of the Spanos (WA) Pty Ltd and CFMEU (WA) Enterprise Agreement 2016-2020 with the Fair Work Commission (FWC). The primary dispute revolves around the terms and conditions of employment as outlined in the enterprise agreement between the employer, Spanos (WA) Pty Ltd, and the union, CFMEU. The FWC was tasked with determining whether the agreement complied with the Fair Work Act 2009, particularly with respect to the provisions that ensure employees are treated fairly and with dignity.

The legal issues before the FWC included whether the enterprise agreement appropriately balanced the interests of the employer and the employees, and if it met the requirements for being a "better off overall test" (BOOT). This test ensures that the overall terms and conditions of employment under the agreement are not less favourable than those provided by the applicable awards or registered agreements. Additionally, the FWC examined if the agreement contained provisions that were contrary to the public interest or not in the best interests of employees.

In delivering its decision, the FWC found that the enterprise agreement did not meet the BOOT. The FWC identified several areas where the terms of the agreement were less favourable to employees compared to the relevant award. For instance, the agreement provided for reduced leave entitlements and less favourable pay rates for certain employees. Moreover, the FWC noted that the agreement did not sufficiently protect the rights of employees in terms of redundancy and termination, which was contrary to the public interest. Consequently, the FWC did not approve the enterprise agreement, finding that it did not provide a fair and equitable balance of rights and obligations between the parties.

The FWC's final order was that the Spanos (WA) Pty Ltd and CFMEU (WA) Enterprise Agreement 2016-2020 was not approved. The FWC mandated that the agreement be renegotiated to ensure that it meets the BOOT and does not disadvantage employees in terms of their entitlements and protections.

Construction, Forestry, Maritime, Mining and Energy Union

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established